Date: 10 March 2014
Reference: NIA 165/11-15
Mandate Number: Mandate 2011/15 Tenth Report
Committee: Standards and Privileges
Download the full report here.
1. The Committee on Standards and Privileges has considered a report from the Acting Commissioner for Standards on his investigation into a complaint against Mr Gerry Kelly MLA by from Messrs Jim Allister QC MLA, Luke Bloomer and Thomas Buchanan MLA. The Acting Commissioner’s report and the complaints are appended to this report.
2. The Assembly Commissioner for Standards, Mr Douglas Bain, received letters of complaint against Mr Gerry Kelly MLA from Messrs Jim Allister QC MLA, Luke Bloomer and Thomas Buchanan MLA, all dated 12th August 2013 and challenging Mr Kelly’s involvement in a procession in Castlederg. The procession, which took place on 11th August and was organised by the Tyrone Commemoration Committee, had been approved by the Parades Commission subject to various restrictions, and proceeded from the centre of the village to a new memorial, in front of which Mr Kelly delivered a speech to an audience of mostly fellow republicans. The speech received wide coverage in the media, from which the three complainants derived their account of the incident. As Mr Bain was, at that time, a Parades Commissioner, he deemed that he was subject to a perceived conflict of interest and recused himself from the investigation. The Assembly subsequently appointed Mr Stuart Allan as an Acting Commissioner in respect of the incident.
3. In his speech Mr Kelly praised the example of Seamus Harvey and Gerard McGlynn, who died in 1973 when an explosive device they had been transporting had exploded prematurely. The complainants believe that Mr Kelly’s speech glorified terrorism and was grossly insensitive to the families of its victims. They also allege that the marchers did not observe the conditions imposed by the Parades Commission and that by his presence Mr Kelly condoned these illegal acts. Mr Allister and Mr Bloomer base their complaints on the Public Duty and Promoting Good Relations principles. Mr Buchanan also relies on the Accountability, Equality and Respect principles and the rules enjoining Members to prefer the public over their private interest and not to do anything which would bring the Assembly into disrepute.
The Commissioner’s investigation and report
4. As part of his investigation the Acting Commissioner both interviewed and sought written evidence from Messrs Kelly, Allister and Buchanan. He also sought written evidence from the other complainant, the Parades Commission and the PSNI. The Acting Commissioner has included all the evidence he gathered with his report.
5. The Acting Commissioner established a number of facts which are set out in paragraph 22 of his report and include the following:
- The Tyrone Commemoration Committee, on 11th July 2013, advised the Parades Commission for Northern Ireland that it proposed to hold a parade in Castlederg on Sunday 11th August 2013. The purpose of the parade was given in the notification as the ‘Tyrone Volunteers Day Commemoration’.
- The Parades Commission had regard to the fact that the parade was offensive to many in the local community.
- Having considered all relevant information, the Parades Commission took the view that it was necessary to place conditions on the parade, which it did under its powers under section 8 of the Public Processions Act 1998. The Parades Commission deemed that these conditions were necessary and proportionate and were not such as to affect significantly the individual’s right to assemble. The Parades Commission believed that the conditions struck a fair balance between the needs of the community and the individual.
- Mr Gerry Kelly, MLA for North Belfast, had been invited by the Tyrone Commemoration Committee to give a speech at the end of the parade at the unveiling of a memorial stone to mark the deaths of republicans, including Seamus Harvey and Gerard McGlynn who had been killed in 1973 when an explosive device they had been transporting had exploded prematurely. Mr Kelly had been invited to make the speech as a prominent republican.
- Mr Kelly made his speech at the end of the march (approximately 3.30pm) at the new memorial at Hillview Park before an audience of some 200 people who were mainly from the Catholic or republican tradition.
- None of the complainers was present when the speech was delivered by Mr Kelly; they became aware of its contents from media reports.
- There was no evidence that Mr Kelly had personally breached any of the conditions applied by the Parades Commission determination or had otherwise committed any offence at the parade on 11th August or during the speech given at the end of the parade.
6. The Acting Commissioner has concluded that – taking account of all the circumstances relating to the organisation of the parade and the unveiling of the memorial – there is no evidence that Mr Kelly was acting in his official capacity as a Member of the Assembly on that day. The Acting Commissioner therefore concludes that Mr Kelly was not in breach of the Code of Conduct. The Acting Commissioner’s rationale is set out in paragraphs 27 to 32 of his report.
7. However, in the Acting Commissioner’s opinion, even if it had been demonstrated that Mr Kelly was attending the event in his official capacity, a breach of the Code would not have occurred. The Acting Commissioner points out that the right to free speech is protected under the Code and by the European Convention on Human Rights (ECHR). Neither of these authorities protects it unconditionally, but the ECHR, with which the Code must be consistent, allows for it to be limited only in exceptional circumstances, for reasons of public safety or the prevention of disorder or crime, most notably.
8. The Acting Commissioner has concluded that Mr Kelly was entitled to express his opinion on the matters dealt with in his speech and that no aspect of that speech could reasonably be taken to conflict with the principles and duties set out in the Code or to amount to the encouragement of terrorism. He does take the view, however, that the speech will have caused distress and hurt to those within the Protestant or unionist tradition, particularly those living in the Castlederg area.
9. As for the suggestion that Mr Kelly, who is not alleged to have failed to comply with the ruling of the Parades Commission himself, is responsible for irregularities on the part of other marchers, the Acting Commissioner judges it unreasonable to construe his mere presence as an unqualified endorsement of their behaviour.
The Committee’s Considerations
10. As per the Committee’s usual procedure, Mr Kelly was provided with a copy of the Acting Commissioner’s report. Mr Kelly was advised that he may provide the Committee with his comments in respect of any matter raised within the report. He was also advised that he may choose to appear before the Committee to make his comments in person and to respond to any questions that members of the Committee may have. Mr Kelly chose neither to provide the Committee with any additional comments nor to appear before it.
11. The Committee on Standards and Privileges considered the report at its meeting on Wednesday 5th March 2014 when the Acting Commissioner attended and answered members’ questions. The Committee reflected on the matters raised in the report and on the answers given to their questions by the Acting Commissioner. Having done so, the Committee is satisfied that Mr Kelly has not breached the Code of Conduct. The complaints are not upheld.
12. When considering the Acting Commissioner’s conclusions the Committee discussed the difficulty of establishing when a Member is acting in their role as an MLA and when they are acting as a private individual. This is not the first occasion on which this issue has arisen 1. The Committee has therefore decided to consider this matter further as part of the current review of the Code of Conduct 2.
13. The Committee agrees with the Acting Commissioner that Members are entitled to the high level of protection afforded by the European Convention on Human Rights when expressing political opinions. The Acting Commissioner noted that the right to free speech:
“…applies not only to opinions, information or ideas that are favourably received or regarded as inoffensive but also to those that offend, shock, disturb or might be regarded as irresponsible. The demands of pluralism, tolerance and broad mindedness are regarded as an essential part of a democratic society”. 3
14. This Committee and its predecessor have made clear that the Assembly should not seek to prevent or limit any political opinion being expressed legally 4 . The Committee has therefore proposed, as part of the current review, that the scope of the Code of Conduct be clarified to make clear it does not extend in any circumstances to the expression of lawful comments by Members.
15. The Committee accepts the Acting Commissioner’s conclusion that Mr Kelly’s speech will have caused distress and hurt to those within the Protestant or unionist tradition, particularly those living in the Castlederg area. The Committee urges all Members to exercise their right to free speech responsibly, mindful of the sensitivities of our different communities and the potential for certain comments to cause hurt to particular groups.
16. The Committee wishes to record its gratitude to Mr Allan for having carried out the role of Acting Commissioner.
1 The issue was considered most recently in the Committee’s eighth report (NIA 154/11-15) on complaints against Mr Phil Flanagan.
2 See the Committee’s Review of the Code of Conduct and Guide to the Rules Relating to the Conduct of Members: Issues Paper, via http://www.niassembly.gov.uk/Assembly-Business/Committee/Standards-and-Privileges/
3 See paragraph 40 of the Commissioner’s report which cites Lingens v Austria (1986) 8 EHRR 407
4 See the Committee’s sixth report (NIA 126/11-15) on a complaint against Mr Alex Maskey MLA and the previous Committee’s reports 45/09/10R and 46/08/09R.